The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
CHRISTOPHER GALLI, individually )
and on behalf of others similarly situated, )
)
Plaintiff, )
)
v. ) Civil No. 25-13683-LTS
)
DEMANDSCIENCE US, LLC, )
)
Defendant. )
)
MEMORANDUM AND ORDER ON MOTION TO DISMISS (DOC. NO. 13)
August 17, 2026
SOROKIN, J.
This is a putative class action alleging violations of Colorado’s Prevention of
Telemarketing Fraud Act (“PTFA”) against DemandScience US, LLC. Christopher Galli, on
behalf of all others similarly situated, alleges that DemandScience published an online directory
listing the cell phone numbers of Colorado residents without their consent. DemandScience
moves to dismiss the amended complaint under Rule 12(b)(6). Doc. No. 13.1 For the reasons
that follow, the motion to dismiss is DENIED.
I. BACKGROUND
A. The PTFA
The following facts are drawn from the amended complaint. On May 27, 2005, Colorado
Governor Bill Owens signed into law HB05-1288, which amended the PTFA to include Section
1 Citations to “Doc. No. __ at __” reference items filed on the electronic docket (“ECF”) in the
action that is the subject of this Order; pincites are to page numbers in the ECF header or, where
applicable, to the paragraph numbering within the document.
304(4)(a)(I). Doc. No. 21 ¶ 1. That section provides:
On or after September 1, 2005, a person commits an unlawful telemarketing
practice if the person knowingly . . . [l]ists a cellular telephone number in a directory
for a commercial purpose unless the person whose number has been listed has given
affirmative consent, through written, oral, or electronic means, to such listing.
Colo. Rev. Stat. § 304(4)(a)(I).
The Colorado General Assembly enacted this section of the PTFA to address privacy
concerns and to protect cell phone users from the misappropriation of their personal information.
Doc. No. 21 ¶ 4. As explained in the statutory provision’s “legislative declaration” statement:
The general assembly hereby finds, determines, and declares that the use of
telephones for commercial solicitation is rapidly increasing; that this form of
communication offers unique benefits, but entails special risks and poses the
potential for abuse; that the general assembly finds that the widespread practice of
fraudulent and deceptive commercial telephone solicitation has caused substantial
financial losses to thousands of consumers, and, particularly, elderly, homebound,
and otherwise vulnerable consumers, and is a matter vitally affecting the public
interest; and, therefore, that the general welfare of the public and the protection of
the integrity of the telemarketing industry requires statutory regulation of the
commercial use of telephones.
Colo. Rev. Stat. § 6-1-301.
B. DemandScience
DemandScience is a Massachusetts-based, business-to-business (“B2B”) data broker
company. Doc. No. 21 ¶¶ 11, 15-16. It compiles and maintains a directory on its website
(demandscience.com) for businesses seeking to acquire marketing and sales leads. Id. ¶¶ 16-18.
At issue in this matter is DemandScience’s publication of Colorado residents’ cell phone
numbers in its directory. DemandScience’s website allows any user to search for individuals in
the directory by name, job title, company, location, and other parameters. Id. ¶ 19. From the
resulting list of individuals, the user can click on a specific individual to view a redacted preview
of the individual’s contact information. Id. ¶ 20. The user can then access the individual’s
unredacted cell phone number by clicking “Show Info” and paying a fee. Id.
Galli, a resident of Colorado, alleges that DemandScience lists and sells his cell phone
number (and the numbers of other Coloradans) in this manner without consent. Id. ¶¶ 10, 22-23.
He further argues that DemandScience’s conduct has caused harm in various ways. First, he
contends that “Defendant’s misappropriation of Coloradans’ cell phone numbers undeniably
deprives Colorado residents of the ability to enjoy their PTFA privacy rights” and “deprives
them of the real, quantifiable value of such data.” Id. ¶ 27. He also argues that
DemandScience’s disclosure of cell phone numbers harms individuals by making them more
susceptible targets to cybercriminals and fraudulent telemarketers. Id. ¶¶ 28-31.
Galli initially filed suit in state court on September 29, 2025. Doc. No. 1-1.
DemandScience subsequently removed the case to this Court. Doc. No. 1. On January 12, 2026,
DemandScience moved to dismiss. Doc. No. 13. A few weeks later, Galli filed an amended
complaint, which advances one claim under Section 304(4)(a)(I) of the PTFA. Doc. No. 21. In
light of the amended complaint, the Court asked DemandScience whether it wished to rely on the
existing motion to dismiss or file a new response. Doc. No. 22. DemandScience chose the
former route. Doc. No. 23. Galli then opposed the motion, Doc. No. 31, and DemandScience
replied, Doc. No. 35. On May 20, 2026, the Court, pursuant to 28 U.S.C. § 2403(b), invited the
Attorney General of Colorado to intervene in response to DemandScience’s constitutional
challenges to the PTFA. Doc. No. 37. The Attorney General did not intervene within the sixty-
day timeline set by the Court or at any point thereafter. The Court held a hearing on the motion
on July 29, 2026.
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The court must “take all factual allegations [in the complaint] as true and . . . draw all
reasonable inferences in favor of the plaintiff.” Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d
92, 96 (1st Cir. 2007). But “[t]he court need not accept a plaintiff’s assertion that a factual
allegation satisfies an element of a claim, . . . nor must a court infer from the assertion of a legal
conclusion that factual allegations could be made that would justify drawing such a conclusion.”
Cordero-Hernandez v. Hernandez-Ballesteros, 449 F.3d 240, 244 n.3 (1st Cir. 2006).
III. DISCUSSION
DemandScience moves to dismiss the amended complaint on several grounds. First, it
contends that Section 304(4)(a)(I) does not apply here because (1) the PTFA only applies to
entities engaged in telemarketing; and (2) DemandScience falls under the PTFA’s publisher
exemption. Second, DemandScience argues that the amended complaint should be dismissed
because Section 304(4)(a)(I) poses an unconstitutional restriction of speech. Finally,
DemandScience asserts that Section 304(4)(a)(I) is unconstitutionally vague. The Court
addresses these arguments in turn.
A. The PTFA’s Application to DemandScience
DemandScience first argues that it cannot be held liable under Section 304(4)(a)(I)
because that statutory provision “does not apply to businesses that neither engage in nor facilitate
commercial telemarketing.” Doc. No. 14 at 10. It bases this theory on two grounds. First,
DemandScience points to the fact that the statute’s legislative declaration indicates the PTFA
was enacted to address the “rapidly increasing” use of telephones for “commercial solicitation”
and “the widespread practice of fraudulent and deceptive commercial telephone solicitation.” Id.
Second, DemandScience contends that the word “commercial” in Section 304(4)(a)(I) should be
understood as referencing commercial telephone solicitations or telephone sellers based on the
way other provisions of the statute use the word. Id.
The Court is not persuaded by either theory. Notwithstanding the legislative
declaration’s focus on telephone solicitations, nothing in Section 304(4)(a)(I) limits liability to
those engaging in or facilitating commercial telemarketing. Section 304(4)(a)(I) applies broadly
to “a person” who “[l]ists a cellular telephone number in a directory for a commercial purpose”
without consent. Colo. Rev. Stat. § 6-1-304(4)(a)(I). The statute further defines a “person” as
“an individual, corporation, business trust, estate, trust, partnership, unincorporated association,
or two or more thereof having a joint or common interest, or any other legal or commercial
entity.” Id. § 6-1-102(6). Pursuant to this unambiguous definition, DemandScience clearly
qualifies as a “person” under Section 304(4)(a)(I). Its argument that the PTFA narrowly governs
entities involved in telemarketing runs counter to the plain language of the statute. “Courts may
not interpolate into a statute words that it does not contain, or extract a meaning which is not
expressed by it.” Tatum v. Basin Res., Inc., 141 P.3d 863, 871 (Colo. App. 2005). “If the
statutory language is clear,” courts must “interpret the statute according to its plain and ordinary
meaning.” Specialty Rests. Corp. v. Nelson, 231 P.3d 393, 397 (Colo. 2010); see also Hartford
Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (“[W]hen the statute’s
language is plain, the sole function of the courts . . . is to enforce it according to its terms.”
(citation modified)).
Similarly, DemandScience’s far-fetched reading of the word “commercial” is not
grounded in the language of the statute. It argues that other provisions of the PTFA “consistently
use[] the word ‘commercial’ to describe a category of telephone solicitations or telephone
seller.” Doc. No. 14 at 10. This argument distorts the fact that those other provisions qualify the
term “commercial” with more specific descriptors. See Colo. Rev. Stat. § 6-1-301 (“telephones
for commercial solicitation,” “fraudulent and deceptive commercial telephone solicitation,” and
“commercial use of telephones”); id. § 6-1-302 (“commercial telephone solicitation” and
“commercial telephone seller”); id. § 6-1-303 (“commercial telephone seller”); id. § 6-1-304(1)
(“commercial telephone seller” and “commercial telephone solicitation”); id. § 6-1-305
(“commercial telephone seller”). Here, Section 304(4)(a)(I) prohibits listing “a cellular
telephone number in a directory for a commercial purpose” without any limiting condition on the
term “commercial.” Id. § 6-1-304(4)(a)(I). Under its ordinary meaning, the phrase “commercial
purpose” in Section 304(4)(a)(I) refers to a profit-related purpose. See Commercial, Black’s
Law Dictionary (12th ed. 2024) (defining “commercial” as “[o]f, relating to, or involving the
selling of goods or services for profit”). And here, the amended complaint alleges that
DemandScience published the cell phone numbers for a profit-motivated purpose—namely, “to
entice demandscience.com users to pay to acquire access to demandscience.com subscriptions
and/or credits” and “to fulfill Defendant’s obligations to demandscience.com users who have
paid for demandscience.com subscriptions and/or credits.” Doc. No. 21 ¶ 46. Therefore,
DemandScience’s alleged actions plainly constitute the type of conduct prohibited by the statute.
DemandScience does not stop there. It further argues that it is exempt from the PTFA
because it qualifies as a “publisher” within the statute’s exclusion. Doc. No. 14 at 11. Not so.
The PTFA states that it does not apply to “[p]ublishers, including outdoor advertising media,
advertising agencies, broadcasters, or printers engaged in the dissemination of information or
reproduction of printed or pictorial matter who publish, broadcast, or reproduce material without
knowledge of its deceptive character.” Colo. Rev. Stat. § 6-1-106(1)(b). The Court notes as an
initial matter that this exclusion’s focus on information of a “deceptive character” appears to be
more applicable to other provisions of the PTFA dealing with deceptive trade practices. See,
e.g., id. § 6-1-105. In any event, DemandScience has not adequately demonstrated that it
amounts to a “publisher” under the exemption. As alleged in the amended complaint,
DemandScience is the original creator and author of an online directory that allegedly violates
Section 304(4)(a)(I). Doc. No. 21 ¶¶ 15-21. These allegations do not describe a non-culpable
publisher that unknowingly disseminates prohibited information created and provided by others.2
Furthermore, DemandScience’s broad interpretation of the publisher exemption would
effectively swallow Section 304(4)(a)(I). As Galli argues, if a person could avoid liability under
Section 304(4)(a)(I) so long as they “publish” or “engage[] in the dissemination of” the
directory, then nearly all violators would be exempted. Doc. No. 31 at 10. For all these reasons,
the Court rejects DemandScience’s assertions that the statute does not reach its alleged conduct.
With those issues resolved, the Court turns to DemandScience’s constitutional challenges to
Section 304(4)(a)(I).
B. First Amendment
1. Content-Based Restriction
DemandScience asserts that Section 304(4)(a)(I) facially violates the First Amendment
because it is a content-based restriction on speech that does not survive strict scrutiny. “A
regulation of speech is facially content based under the First Amendment if it targets speech
based on its communicative content—that is, if it applies to particular speech because of the
topic discussed or the idea or message expressed.” City of Austin v. Reagan Nat’l Advert. of
Austin, LLC, 596 U.S. 61, 69 (2022) (citation modified). To survive a facial challenge, content-
based restrictions must satisfy strict scrutiny. McCullen v. Coakley, 573 U.S. 464, 478 (2014).
As a preliminary matter, Galli contends that Section 304(4)(a)(I) does not restrict
“speech” because listing and selling cell phone numbers does not constitute expressive activity
2 To provide an example, in the Court’s view, the PTFA would exempt a printing company that
assists in creating paper copies of DemandScience’s directory.
protected under the First Amendment. Doc. No. 31 at 10-11. Instead, he characterizes the cell
phone numbers as “pure ‘fact[s]’” that “are only ‘elements of speech.’” Id. at 11 (quoting
Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 61-62 (2006)).
This argument deviates from Supreme Court precedent. In Sorrell, the Supreme Court
rejected a similar argument with respect to a state law that prohibited pharmacies from selling
records that revealed the prescribing practices of individual doctors. Sorrell v. IMS Health Inc.,
564 U.S. 552, 570 (2011). In finding that the creation and dissemination of the prescriber data
amounted to speech within the meaning of the First Amendment, the Court emphasized that
“[f]acts, after all, are the beginning point for much of the speech that is most essential to advance
human knowledge and to conduct human affairs.” Id.
The same reasoning neatly applies to cases, such as this one, that involve laws restricting
the disclosure of personal contact information. Indeed, other district courts have held that
statutes restricting the disclosure of home addresses, phone numbers, and similar types of contact
information regulate “speech” within the First Amendment’s purview. See, e.g., Atlas Data Priv.
Corp. v. We Inform, LLC, 758 F. Supp. 3d 322, 333-34 (D.N.J. 2024) (rejecting argument that
state law limiting disclosure of law enforcement contact information “regulat[ed] only data”
instead of “restricting speech”); Jackson v. Whitepages, Inc., 798 F. Supp. 3d 583, 594 (N.D. W.
Va. 2025) (noting “lower courts consistently hold that factual disclosures of individuals’
personal data . . . constitute speech” and listing cases). Following suit, this Court rejects Galli’s
contention that Section 304(4)(a)(I) regulates conduct falling outside the First Amendment’s
protective domain.
Having established that Section 304(4)(a)(I) regulates “speech” for the purposes of the
First Amendment, the Court turns to whether it imposes a content-based restriction.
DemandScience argues that Section 304(4)(a)(I) is content based “because it restricts listing of a
‘cellular telephone number’ for ‘commercial purposes’ to the exclusion of all other information
for any other purpose.” Doc. No. 14 at 13. Galli responds that the statute’s “ban on the
commercial listing of cellular telephone number(s) (not a viewpoint in any way) belonging to
any resident (rather than, say, only law enforcement officials) in a directory by anybody is
content-neutral because it does not discriminate by subject matter or speaker.” Doc. No. 31 at
13.
While the parties quibble about the applicability of various cases in great detail, the Court
finds that Section 304(4)(a)(I) plainly amounts to a content-based restriction. The statute singles
out a particular type of content—the disclosure of cell phone numbers for a commercial purpose.
See Dex Media W., Inc. v. City of Seattle, 696 F.3d 952, 957 (9th Cir. 2012) (holding that city
ordinance imposing limitations of the distribution of yellow pages phone directories “is a
content-based restriction”). That the statute applies to any speaker who publishes a directory of
any Colorado resident’s cell phone number does not erase the fact that it restricts speech based
on its content. Moreover, laws can amount to content-based restrictions even if they do not
discriminate against speech based on the substantive ideas or viewpoints expressed. See Reed v.
Town of Gilbert, 576 U.S. 155, 156 (2015) (“A law that is content based on its face is subject to
strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack
of animus toward the ideas contained in the regulated speech.” (citation modified)). For these
reasons, the Court finds that Section 304(4)(a)(I) is a content-based restriction on speech.
2. Applicable Standard of Review
While content-based restrictions typically trigger strict scrutiny, this case presents
additional analytical wrinkles. Galli argues that, “[e]ven if [Section 304(4)(a)(I)] were content-
based,” it is not subject to strict scrutiny for two reasons. Doc. No. 31 at 14. First, he asserts
that Section 304(4)(a)(I)’s resemblance to a traditional privacy tort allows it to “exist in harmony
with the First Amendment” and “forecloses the application of strict scrutiny.” Id. Second, he
contends that intermediate scrutiny is the appropriate standard of review because Section
304(4)(a)(I) solely regulates commercial speech. Id. at 15. The Court evaluates each of these
theories.
a. Privacy Tort
In support of his first theory, Galli relies on Vidal v. Elster, 602 U.S. 286 (2024). There,
the Supreme Court found that the Lanham Act’s name clause—which prohibits the registration
of a trademark that includes the name of a living individual without that individual’s consent—
did not violate the First Amendment because the “tradition of restricting the trademarking of
names has coexisted with the First Amendment, and the name clause fits within that tradition.”
Id. at 307. Galli contends that Section 304(4)(a)(I) is similarly compatible with the First
Amendment because it is “closely related to three traditional privacy torts which have long
existed in harmony with the First Amendment”: (1) public disclosure of private information,
(2) intrusion upon seclusion, and (3) misappropriation of name and likeness. Doc. No. 31 at 27.3
However, Galli cites no binding precedent establishing that a content-based restriction
that bears some resemblance to privacy torts is subject to a less exacting standard of review. The
Supreme Court cases he cites have limited holdings that do not readily support the theory he
3 It is far from clear that the first two of these torts provide close analogs to Section 304(4)(a)(I).
Public disclosure of private information and intrusion upon seclusion both require conduct that is
highly offensive to a reasonable person. See Tonnessen v. Denv. Pub. Co., 5 P.3d 959, 966
(Colo. App. 2000); Pearson v. Kancilia, 70 P.3d 594, 599 (Colo. App. 2003). Listing phone
numbers in a directory is a commonplace and longstanding practice (e.g., printed phone books)
that a reasonable person likely would not view as highly offensive. Misappropriation of name
and likeness presents a closer call. Nonetheless, even if Section 304(4)(a)(I) closely resembles
such a tort, that fact alone is not sufficient for triggering a lower standard of review for the
reasons explained in the text.
seeks to advance. For starters, the Supreme Court in Vidal cautioned that its decision was a
“narrow” one that did not “set forth a comprehensive framework for judging whether all content-
based but viewpoint-neutral trademark restrictions are constitutional.” 602 U.S. at 310. Given
its expressly narrow holding, Vidal contains no suggestion that its framework extends to a non-
trademark-related privacy statute like the PTFA. Galli also cites Burson, a case involving a First
Amendment challenge to a Tennessee statute prohibiting the solicitation of votes and the display
of campaign materials within 100 feet of an entrance to a polling place. Burson v. Freeman, 504
U.S. 191, 198 (1992). There, the Supreme Court did not apply a lower standard of review and
found that the Tennessee statute was a content-based regulation prompting strict scrutiny. Id. at
207. This case cuts against Galli’s argument that strict scrutiny does not apply to Section
304(4)(a)(I).
Galli’s reliance on Florida Star is similarly unavailing. That case involved a Florida
statute making it unlawful to publish “in any instrument of mass communication” the name of
the victim of a sexual offense. The Fla. Star v. B.J.F., 491 U.S. 524, 526 (1989). A newspaper
brought a First Amendment challenge to the statute after being found civilly liable for publishing
the name of a rape victim, which it had obtained from a publicly available police report. In
evaluating this challenge, the Supreme Court did not expressly discuss whether strict scrutiny
applied to the statute. Id. at 527. Instead, the Court relied upon a “limited First Amendment
principle” that it identified from its precedents—namely, that “[i]f a newspaper lawfully obtains
truthful information about a matter of public significance then state officials may not
constitutionally punish publication of the information, absent a need to further a state interest of
the highest order.” Id. at 533. The Court then weighed three factors in evaluating the
constitutionality of the Florida statute: (1) whether the newspaper lawfully obtained truthful
information about a matter of public significance, (2) whether the statute serves a need to further
a state interest of the highest order, and (3) whether the statute actually serves those interests and
is not underinclusive. Id. at 536-41. Upon assessing these factors, the Court found that the
Florida statute violated the First Amendment.
The Supreme Court’s holding in Florida Star does not support Galli’s contention that
Section 304(4)(a)(I) is entitled to a lower standard of review than strict scrutiny. For one, the
subject matter and issues presented in this case widely diverge from the issues raised in Florida
Star. The PTFA does not focus on newspapers, and the disclosure of cell phone information in a
commercial directory implicates a completely different privacy concern than the mass
publication of the names of sex-crime victims. Thus, it is doubtful that the “limited” First
Amendment principle guiding Florida Star applies to this case.
But even assuming (without deciding) that Florida Star provides applicable guidance,
nothing in that decision states or suggests that certain types of privacy protections should be
reviewed under a more relaxed standard of review than strict scrutiny. To the contrary, the
Northern District of West Virginia recently interpreted Florida Star as “only reinforc[ing] the
conclusion that strict scrutiny applies,” even though “the language of Florida Star differs from
the standard strict scrutiny formulation.” Jackson, 798 F. Supp. 3d at 599. This Court similarly
declines to read Florida Star as paving a more forgiving standard of review for privacy statutes
like the PTFA. See id. (emphasizing that Florida Star framework is “highly speech protective”
and noting that “the Supreme Court has never used [the Florida Star] formulation to justify
restricting the freedom to publish truthful information”). For all these reasons, the Court rejects
the argument that Section 304(4)(a)(I)’s connection to privacy interests or torts insulates it from
strict scrutiny.
b. Commercial Speech
Galli advances another theory for bypassing strict scrutiny. He contends that Section
304(4)(a)(I) only governs commercial speech, which triggers a lower standard of review—
intermediate scrutiny. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447
U.S. 557, 561-63 (1980) (noting that First Amendment “accords a lesser protection to
commercial speech than to other constitutionally guaranteed expression”).
Before weighing whether Section 304(4)(a)(I) governs commercial or non-commercial
speech, the Court addresses the nature of DemandScience’s First Amendment challenge.
DemandScience brings a facial rather than an as-applied challenge to Section 304(4)(a)(I). In the
First Amendment context, there are two ways for DemandScience to prevail on its facial attack.
United States v. Stevens, 559 U.S. 460, 472-73 (2010). First, it can establish that “no set of
circumstances exist under which [Section 304(4)(a)(I)] would be valid.” United States v.
Salerno, 481 U.S. 739, 745 (1987). Alternatively, it can establish that the law is
unconstitutionally overbroad because “a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Stevens, 559 U.S.
at 473 (citation modified). “The overbreadth claimant bears the burden of demonstrating, from
the text of the law and from actual fact, that substantial overbreadth exists.” Virginia v. Hicks,
539 U.S. 113, 122 (2003) (citation modified). Because facial invalidation of a statute is a “wide-
reaching” measure, courts employ the overbreadth doctrine “with hesitation” and “only as a last
resort.” New York v. Ferber, 458 U.S. 747, 769 (1982).
Despite framing its challenge to Section 304(4)(a)(I) as a facial one, DemandScience
does nothing to engage with these standards governing its facial challenge. It does not argue that
there are no circumstances under which Section 304(4)(a)(I) is compatible with the First
Amendment. Nor does it discuss “which of the law’s applications are constitutionally
permissible and which are not, and . . . weigh the one against the other.” Moody v. NetChoice,
LLC, 603 U.S. 707, 744 (2024). For example, DemandScience does not argue that Section
304(4)(a)(I)’s illegitimate applications to non-commercial speech are substantial in comparison
to its potentially legitimate applications to commercial speech, such that it is susceptible to facial
invalidation. Instead, in its rebuttal to Galli’s argument that Section 304(4)(a)(I) governs
commercial speech, DemandScience only discusses Section 304(4)(a)(I)’s application to its own
alleged conduct. See Doc. No. 35 at 3-5.
Given DemandScience’s focus on its own conduct, the Court follows its lead and
evaluates whether Section 304(4)(a)(I)’s application to DemandScience constitutes a restriction
on commercial speech—that is, “expression related solely to the economic interests of the
speaker and its audience.” Cent. Hudson, 447 U.S. at 561.4 The Court finds that it does. As
alleged in the complaint, DemandScience is a B2B data broker that sells personal contact
information to businesses wishing to improve their marketing and sales efforts. Doc. No. 21
¶¶ 15-17. Put simply, DemandScience’s business is premised on getting its customers to pay to
access individuals’ cell phone numbers and other personal information. DemandScience does
not provide cell phone numbers for free. It only discloses cell phone numbers as part of a
commercial transaction with its customers.5 Id. ¶ 20. Accordingly, DemandScience’s disclosure
4 The Court does so despite DemandScience’s unequivocal assertion at the hearing that it brings
a facial challenge to the statute. The papers read otherwise. In addition, a narrower review is
preferable to a broader facial challenge, which is typically “disfavored” by courts. Moody, 603
U.S. at 744.
5 This fact differentiates this matter from Dex Media, a Ninth Circuit case relied on by
DemandScience. Dex Media involved a Seattle law imposing conditions on the distribution of
yellow pages phone directories, such as requiring publishers of such directories to obtain permits
and pay a fee for each directory distributed in the city. Dex Media, 696 F.3d at 953. There, the
Ninth Circuit found that “advertisements contained in yellow pages directories fit within our core
of cell phone information “is—primarily, if not entirely—an economic act.” Boelter v. Hearst
Commc’ns, Inc., 192 F. Supp. 3d 427, 445 (S.D.N.Y. 2016).
DemandScience avers that its disclosure of cell phone numbers “provides factual
information that users may employ for a wide range of purposes that are not limited to
commerce,” such as “for research, employment inquiries, customer service issues, or simply to
contact a business.” Doc. No. 35 at 4. But this does not change the fact that DemandScience’s
disclosure, itself, is intertwined within a commercial transaction between DemandScience and its
customers. That a customer may then proceed to use the cell phone data for a non-commercial
purpose does not nullify the commercial nature of DemandScience’s speech.
DemandScience further contends that its directory cannot be seen as commercial speech
because it does not satisfy the three-factor analysis employed by the Supreme Court in Bolger.
At issue in Bolger were informational pamphlets distributed by a manufacturer of contraceptives
promoting the desirability and availability of contraceptive products. Bolger v. Youngs Drug
Prods. Corp., 463 U.S. 60, 62 (1983). In evaluating whether these pamphlets constitute
commercial speech, the Court considered three factors—whether the speech is an advertisement,
refers to a specific product or service, and is economically motivated. Id. at 66-67. The Court
concluded that the “combination of all these characteristics . . . provides strong support for the . .
notion of commercial speech,” whereas “telephone listings and community information
contained in the directory constitute noncommercial speech.” Id. at 957 (citation modified).
Nonetheless, this holding does not establish that the paywalled cell phone listings on
DemandScience’s website constitute non-commercial speech. In Dex Media, the yellow pages
phone directories were provided to customers “free of charge.” Id. at 954. Therefore, the
telephone listings contained in those directories were not the components of any commercial
transaction. By contrast, DemandScience only discloses the cell phone numbers in its database
in exchange for payment, which situates this speech within a commercial transaction.
. conclusion that the informational pamphlets are properly characterized as commercial speech.”
Id. at 67.
Relying on this decision, DemandScience contends that its database does not amount to
commercial speech because it “satisfies, at most, the third Bolger factor.” Doc. No. 35 at 4. But
the three factors considered in Bolger do not impose a strict test for commercial speech. To the
contrary, the Supreme Court made clear that it did not “mean to suggest that each of the
characteristics present in this case must necessarily be present in order for speech to be
commercial.” Bolger, 463 U.S. at 67 n.14. After Bolger, many district courts have concluded
that the disclosure of personal information to third parties amounts to commercial speech without
relying on Bolger’s three-factor framework. See, e.g., Saunders v. Hearst Television, Inc., 711
F. Supp. 3d 24, 33 (D. Mass. 2024); Sutton v. TED Found., Inc., No. 23-cv-9219-DEH, 2026
WL 207000, at *10-11 (S.D.N.Y. Jan. 27, 2026); Stark v. Patreon, Inc., 656 F. Supp. 3d 1018,
1033-34 (N.D. Cal. 2023). Thus, nothing in Bolger precludes this Court from finding that
DemandScience’s profit-driven dissemination of cell phone information amounts to commercial
speech.
In any event, DemandScience’s disclosure of cell phone numbers to paying customers is
not the type of speech that typically warrants a high level of protection under the First
Amendment. This is because DemandScience’s alleged conduct is “speech solely in the
individual interest of the speaker and its specific business audience” and does not implicate
matters of public concern, such that it “requires special protection to ensure that debate on public
issues will be uninhibited, robust, and wide-open.” Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U.S. 749, 762 (1985) (citation modified); see also Trans Union Corp. v.
F.T.C., 245 F.3d 809, 818 (D.C. Cir. 2001) (finding that Trans Union’s sale of consumer reports
listing names and addresses to marketers was speech “solely of interest to the company and its
business customers” and applying intermediate scrutiny). Furthermore, where speech is “solely
motivated by the desire for profit,” that speech is propelled by a “force less likely to be deterred
than others.” Dun, 472 U.S. at 762. Based on all these considerations, the Court finds that
DemandScience’s alleged conduct amounts to commercial speech that is afforded “a lesser
protection” than “other constitutionally guaranteed expression.” Cent. Hudson, 447 U.S. at 563.
3. Intermediate Scrutiny
Having resolved that DemandScience’s disclosures constitute commercial speech, the
Court addresses whether Section 304(4)(a)(I)’s restriction on such disclosures survives
intermediate scrutiny. If the commercial speech being regulated concerns lawful activity and is
not misleading, as is the case here, the speech may be regulated if (1) the government has a
“substantial interest” in restricting the speech, (2) the regulation “directly advances the
governmental interest” involved, and (3) the regulation is “not more extensive than necessary to
serve that interest.” Id. at 566.
As for the first factor, Section 304(4)(a)(I) appears to advance two interests: preventing
fraud and protecting privacy. The PTFA’s legislative declaration explicitly points to fraud as the
problem targeted by the statute, stating “that the widespread practice of fraudulent and deceptive
commercial telephone solicitation has caused substantial financial losses to thousands of
consumers, and, particularly, elderly, homebound, and otherwise vulnerable consumers, and is a
matter vitally affecting the public interest.” Colo. Rev. Stat. § 6-1-301. Furthermore, as Galli
contends, Section 304(4)(a)(I) is also “designed to protect privacy.” Doc. No. 21 ¶ 2. As one
sponsor of the law explained: “Most people view their cell phones as private. They give out the
number to friends and family and some colleagues. When their cell phone rings, they expect it to
be important.” Id.
DemandScience does not dispute that Colorado’s interests in preventing fraud and
protecting the privacy of its residents are substantial. Indeed, such aims have been recognized by
the Supreme Court as substantial governmental interests. See, e.g., Ams. for Prosperity Found.
v. Bonta, 594 U.S. 595, 612 (2021) (“It goes without saying that there is a substantial
governmental interest in protecting the public from fraud.” (citation modified)); Fla. Bar v. Went
For It, Inc., 515 U.S. 618, 625 (1995) (recognizing privacy as substantial state interest).
Accordingly, the Court finds that Section 304(4)(a)(I) survives the first step of intermediate
scrutiny review.
The next inquiry is whether Section 304(4)(a)(I) directly advances the governmental
interest at issue. To satisfy this factor, the “governmental body seeking to sustain a restriction on
commercial speech must demonstrate that the harms it recites are real and that its restriction will
in fact alleviate them to a material degree.” Rubin v. Coors Brewing Co., 514 U.S. 476, 487
(1995) (citation modified). A “commercial speech regulation may not be sustained if it provides
only ineffective or remote support for the government’s purpose.” 44 Liquormart, Inc. v. Rhode
Island, 517 U.S. 484, 505 (1996) (citation modified). Here, Section 304(4)(a)(I) directly
advances one of its aims—protecting cell phone privacy. By prohibiting commercial directories
from listing cell phone numbers without consent, Section 304(4)(a)(I) plainly enhances
individuals’ ability to keep their cell phone numbers private. Thus, the Court finds that Section
304(4)(a)(I) satisfies the second factor of the intermediate-scrutiny analysis without resolving
whether it directly advances its other goal of preventing fraud.6
6 The Court is less persuaded that Section 304(4)(a)(I) directly serves its aim of preventing fraud.
While limiting the dissemination of cell phone numbers may make it more challenging for
fraudsters to find and contact their victims, Section 304(4)(a)(I)’s restriction on directories
targets conduct that is multiple degrees removed from the actual fraudulent activity. However,
This brings the Court to the final factor—whether Section 304(4)(a)(I) is not more
extensive than necessary to serve Colorado’s interest in protecting cell phone privacy. As the
Supreme Court has explained, this factor requires that the regulation be a “reasonable fit” for
accomplishing the government’s interest. Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S.
469, 480 (1989). DemandScience contends that Section 304(4)(a)(I) fails to meet this bar
because it is “both underinclusive and overinclusive.” Doc. No. 35 at 5. In particular, it argues
that the statutory provision “bans the truthful publication of phone numbers even where
individuals have voluntarily disclosed them or where no telemarketing occurs,” while
simultaneously “leav[ing] untouched numerous disclosures that pose equal or greater privacy
risks, including government publications, voluntary disclosures on social media, and
noncommercial databases.” Id.
As an initial matter, Section 304(4)(a)(I)’s underinclusiveness does not render it
unconstitutional. A law does not fail intermediate scrutiny merely because it does not address
the entirety of the issue that the government seeks to resolve. The First Amendment “imposes no
freestanding underinclusiveness limitation, and the Government need not address all aspects of a
problem in one fell swoop.” TikTok Inc. v. Garland, 604 U.S. 56, 76 (2025) (citation modified).
And here, Colorado may have had a legitimate basis for limiting Section 304(4)(a)(I)’s reach to
commercial, as opposed to non-commercial, directories. It is reasonable to conclude that
directories used for a commercial purpose generate higher privacy risks because the creators of
such directories are financially motivated to sell and disseminate the data on a widespread basis.
the Court need not resolve this issue in light of its conclusion that the statutory provision directly
advances Colorado’s interest in safeguarding privacy.
In light of these considerations, the Court declines to conclude that Section 304(4)(a)(I) is fatally
underinclusive.
Overinclusiveness presents a closer call. As the Court sees it, the cell phone numbers
disclosed in DemandScience’s directory conceivably fall into three categories. First, there are
the personal cell phone numbers of individuals that are only disclosed to family, friends, and
select businesses or organizations with which the individuals interact. This category of cell
phone numbers invokes a substantial privacy interest that DemandScience impairs through
publishing its directory. Thus, Section 304(4)(a)(I)’s protection of this first category of cell
phone numbers clearly aligns with Colorado’s aim of safeguarding privacy.
Section 304(4)(a)(I)’s application to other types of phone numbers, however, stray further
from this aim. Section 304(4)(a)(I) also covers a second category of phone numbers: personal
cell phone numbers that are publicly available on other sources. For example, as
DemandScience points out, Colorado’s public voter registration records contain the cell phone
numbers of certain individual voters. Doc. No. 14 at 17. Additionally, some individuals
voluntarily disclose their cell phone numbers on public social media profiles. Doc. No. 35 at 5.
DemandScience argues that Section 304(4)(a)(I) is overinclusive because it penalizes the
disclosure of these types of publicly available numbers. Doc. No. 14 at 17.
The third category of phone numbers that Section 304(4)(a)(I) covers is public-facing cell
phone numbers used for business purposes. A local plumber may publicize his cell phone
number on his website for scheduling appointments. A lawyer may advertise her work cell
phone number on billboards to attract clients. Preventing DemandScience from disseminating
this category of cell phone numbers does little (if anything) to advance Colorado’s interest in
protecting the privacy of its residents.
Nonetheless, the Court finds that Section 304(4)(a)(I)’s reach into the second and third
categories of phone numbers does not render it fatally overinclusive. Beginning with the second
category, individuals with personal cell phone numbers that are already in the public domain still
possess a legitimate privacy interest in preventing the further dissemination of their numbers on
DemandScience’s directory. As described on its own website, DemandScience “compiles and
organizes” a directory that customers can use to “[f]ilter across millions of contacts . . . to select
ideal customers.” Doc. No. 21 ¶ 16. DemandScience advertises that its directory “makes
marketing and sales easier by enabling organizations to find the right prospects faster and target
in-market buyers.” Id. In this manner, DemandScience operates and sells a compiled trove of
personal data that is designed to be easily searchable.
This compilation of information generates greater privacy risks than the disclosure of
personal information in other public sources. It is far easier to find personal data through a
streamlined online directory than through government records and individual social media
accounts. See U.S. Dep’t of Just. v. Reps. Comm. For Freedom of Press, 489 U.S. 749, 764
(1989) (noting that “the compilation of otherwise hard-to-obtain information” in a “single
clearinghouse of information” “alters the privacy interest implicated by disclosure of that
information”). And, Section 304(4)(a)(I) specifically targets these concerns by narrowing its
prohibition to the listing of cell phone numbers in a directory, rather than in one-off posts or
publications.7 Therefore, Section 304(4)(a)(I)’s application to personal cell phone numbers that
are publicly disclosed still fits within the government’s interest in protecting privacy.
7 To the extent that some personal cell phone numbers in this second category are so widely
disseminated that the privacy interest cannot sustain the application of the statute, such an issue
would be more appropriately resolved with the benefit of a fuller factual record at a later stage of
the case or through narrowing the class definition.
As for the third category, there is no indication that Galli seeks to represent users of
business cell phones. The amended complaint focuses on DemandScience’s disclosure of
“personal” information and data. See Doc. No. 21 ¶¶ 10, 17, 36, 48. Indeed, Galli represents
that he is a resident and citizen of Colorado whose “personal information” was listed by
DemandScience without his consent. Id. ¶ 10. Accordingly, any concern of overinclusiveness
raised by the third category of cell phone numbers is best resolved by narrowing the class
definition to exclude owners of public-facing cell phone numbers used for business purposes.8
This appropriately circumscribes the scope of Galli’s PTFA claim without reaching thorny
constitutional issues that need not be resolved in this case. See United States v. Vilches-
Navarrete, 523 F.3d 1, 9 n.6 (1st Cir. 2008) (“The maxim that courts should not decide
constitutional issues when this can be avoided is as old as the Rocky Mountains and embedded in
our legal culture for about as long.”).
In any event, intermediate scrutiny does not require the government to “employ the least
restrictive means conceivable” in targeting an identified problem. Greater New Orleans Broad.
Ass’n, Inc. v. United States, 527 U.S. 173, 188 (1999). Although it may not represent a
“perfect” fit, Section 304(4)(a)(I) is sufficiently tailored to the government’s aim of protecting
the privacy of Colorado residents for all the reasons stated above. Id. Moreover, Section
304(4)(a)(I) does not impose an outright prohibition on speech. It allows DemandScience to
continue operating its directory with the affirmative consent of those whose cell phone numbers
are disclosed on the website. Colo. Rev. Stat. § 304(4)(a)(I). It also limits liability to those who
knowingly commit the offense. Id. For all these reasons, the Court finds that Section
8 Narrowing the class definition in this manner also eliminates any potential concern about
Galli’s ability to adequately represent this category of cell phone users.
304(4)(a)(I) survives intermediate scrutiny. DemandScience’s motion to dismiss the complaint
on the grounds that Section 304(4)(a)(I) violates the First Amendment is DENIED.
C. Vagueness
DemandScience further contends that Section 304(4)(a)(I) is impermissibly vague in
violation of the Fourteenth Amendment of the U.S. Constitution and the Colorado Constitution’s
equivalent protections. “[A] statute which either forbids or requires the doing of an act in terms
so vague that men of common intelligence must necessarily guess at its meaning and differ as to
its application violates the . . . due process of law.” Connally v. Gen. Const. Co., 269 U.S. 385,
391 (1926). At the same time, “perfect clarity and precise guidance have never been required
even of regulations that restrict expressive activity.” Ward v. Rock Against Racism, 491 U.S.
781, 794 (1989).
DemandScience insists that Section 304(4)(a)(I) is unconstitutionally vague because it
does not define the terms “lists,” “directory,” and “commercial purpose.” Doc. No. 14 at 19.
The Court disagrees. While the PTFA does not define these terms, these words are far from the
types of amorphous, subjective words courts deem impermissibly vague. For example, the
Supreme Court has “struck down statutes that tied criminal culpability to whether the
defendant’s conduct was ‘annoying’ or ‘indecent’—wholly subjective judgments without
statutory definitions, narrowing context, or settled legal meanings.” United States v. Williams,
553 U.S. 285, 306 (2008). By contrast, the words “lists,” “directory,” and “commercial purpose”
have clear, ordinary definitions that do not “require similarly untethered, subjective judgments.”
Holder v. Humanitarian L. Project, 561 U.S. 1, 21 (2010).
In any event, a party “whose speech is clearly proscribed cannot raise a successful
vagueness claim under the Due Process Clause . . . for lack of notice.” Id. at 20. Here,
DemandScience’s alleged actions fit within the category of conduct that Section 304(4)(a)(I)
proscribes—namely, “list[ing] a cellular telephone in a directory for a commercial purpose”
without consent. Colo. Rev. Stat. § 304(4)(a)(I). That is precisely what DemandScience is
alleged to have done by creating a directory of individuals’ cell phone numbers that it maintains
behind a paywall.9 And as explained above, DemandScience has not successfully shown that the
PTFA does not apply to its conduct or that its alleged actions are exempt from the statute.
Because “the statutory terms are clear in their application to” DemandScience’s alleged conduct,
its “vagueness challenge must fail.” Holder, 561 U.S. at 21.
D. Class-Wide Statutory Damages
Finally, DemandScience “moves in the alternative to strike Plaintiff’s prayer for class-
wide statutory damages under Rule 12(f).” Doc. No. 14 at 19. Rule 12(f) allows a court to
“strike from a pleading an insufficient defense or any redundant, immaterial, or scandalous
matter.” Fed. R. Civ. P. 12(f). DemandScience argues that because the PTFA “provides for
limited statutory damages only for individual claims” and “says nothing about class relief,”
class-wide statutory damages are not available. Doc. No. 14 at 19 (citing Colo. Rev. Stat. § 6-1-
305(1)(c)). To support this argument, DemandScience points to the fact that the broader
Colorado Consumer Protection Act (“CCPA”), within which the PTFA is codified, has been
interpreted by courts to bar class-wide statutory damages. Id. at 19-20.
The Court is not persuaded. The particular provision of the CCPA that has been found by
courts to exclude class-wide statutory damages is Section 6-1-113, which explicitly provides for
9 DemandScience argues that the statute “does not clearly indicate whether it applies to
directories that generate revenue for the directory owner, as Plaintiff contends in this case, or if
the cell phone numbers themselves must be used for a commercial purpose (e.g., to solicit a
purchase from those individuals whose numbers are listed).” Doc. No. 14 at 18-19. But the
latter interpretation tacks on an additional requirement that is unfounded in the plain language of
the statute. Section 304(4)(a)(I) imposes liability on any person who lists a cell phone number in
a directory for a commercial purpose; it does not require that the cell phone numbers are then
used in a particular, commercial manner.
statutory damages “[e]xcept in a class action.” Colo. Rev. Stat. § 6-1-113(2). That provision
also specifies that “[i]n a case certified as a class action, a successful plaintiff may recover actual
damages, injunctive relief allowed by law, and reasonable attorney fees and costs”—leaving out
any mention of statutory damages. Id. § 6-1-113(2.9). Thus, Section 6-1-113 expressly
establishes that class actions cannot yield the same statutory damages permitted in individual
cases.
The PTFA does not contain a similar restriction on class-wide statutory damages.
Section 6-1-305(1), which sets out the penalties available for violations of Section 304(4)(a)(I),
provides for statutory damages in the following manner:
A person who engages in any unlawful telemarketing practice as defined in
section 6-1-304 (4) shall be liable in a private civil action to the owner of the
cellular telephone for consequential damages, court costs, attorney fees, and a
penalty in the amount of at least three hundred dollars and not more than five
hundred dollars for a first offense and at least five hundred dollars and not more
than one thousand dollars for a second or subsequent offense.
Colo. Rev. Stat. § 6-1-305(1)(c). Unlike Section 6-1-113, Section 6-1-305(1) does not contain
any language distinguishing or limiting the remedies available for class actions. Nor is there any
indication that penalties under the PTFA are circumscribed by the penalties available under the
CCPA. To the contrary, Section 6-1-305(1) states that its penalties are provided “[i]n addition to
the remedies available under sections 6-1-110, 6-1-112, and 6-1-113.” Colo. Rev. Stat. § 6-1-
305(1) (emphasis added). Based on these considerations, the Court declines to interpret the
PTFA as precluding class-wide statutory damages.
IV. CONCLUSION
For the foregoing reasons, the motion to dismiss, Doc. No. 13, is DENIED. The Clerk
shall schedule a Rule 16 conference in this matter.
SO ORDERED.
/s/ Leo T. Sorokin
United States District Judge